May 4, 2013

"Guantanamo camp burns through $900,000 a year per inmate"

It's been dubbed the most expensive prison on Earth and President Barack Obama cited the cost this week as one of many reasons to shut down the detention center at Guantanamo Bay, which burns through some $900,000 per prisoner annually.

The Pentagon estimates it spends about $150 million each year to operate the prison and military court system at the U.S. Naval Base in Cuba, which was set up 11 years ago to house foreign terrorism suspects. With 166 inmates currently in custody, that amounts to an annual cost of $903,614 per prisoner.

By comparison, super-maximum security prisons in the United States spend about $60,000 to $70,000 at most to house their inmates, analysts say. And the average cost across all federal prisons is about $30,000, they say.

The high cost was just one reason Obama cited when he returned this week to an unfulfilled promise to close the prison and said he would try again. Obama also said that the prison, set up under his Republican predecessor George W. Bush and long the target of criticism by rights groups and foreign governments, is a stain on the reputation of the United States....

The cost argument could be a potent weapon at a time of running budget battles between Obama and the Republican-controlled House of Representatives, and of across-the-board federal spending cuts that kicked in in March. The "sequestration" as it is known, is due to cut some $109 billion in spending up to the end of September and has cut government services small and large.

Just one inmate from Guantanamo, for example, is equivalent to the cost of 12 weeks of White House tours for the public - a treasured tradition that the Secret Service says costs $74,000 a week and that has been axed under sequestration.

A single inmate is also the equivalent of keeping open the control tower at the Northwest Arkansas Regional Airport for 45 months. That control tower, another victim of cuts, costs $20,000 per month to run.

The $900,000 also matches the funding for nearly seven states to help serve home delivered meals to the elderly. Sequestration has cost Meals on Wheels a median shortfall of $129,497 per state, the organization says.

I do not blog much about GTMO because the inmates held there have not be duly convicted and sentenced. That said, I think it is notable just how high the price tag seems to be on keeping that facility in operation.

Could pets possess the key to progressive pot policies?

The seemingly silly question in the title of this post is prompted by this seemingly silly new article headlined "Pot for pets? Vet offers unorthodox marijuana treatment for pups in pain." Here is how the article gets started:

With medical marijuana legalized in California and several other states, one veterinarian is asking why a puff can't help ailing pooches.

Dr. Doug Kramer, who runs the Vet Guru animal center in Chatsworth, outside Los Angeles, believes that the active ingredient in pot, THC, could be the key to helping Fido feel better.

He said that was the case in treating his own dog, Nikita, saying the marijuana regimen increased her "quality of life." Speaking with Vice magazine last month, Kramer said that a friend had first introduced the idea to him, saying that she used marijuana on her dog when other traditional medications were not working.

When his own Husky, Nikita, was diagnosed with terminal cancer, Dr. Kramer knew he had nothing to lose in the battle to help his pet deal with the pain. "When it became clear that she was nearing the end, that's when she had nothing to lose, as long as it didn't hurt her," he told the magazine.

According to Dogster.com, Kramer is the first vet in the country to offer pot as a treatment for canine pain....
And as long as the movement garners enough support, even animal rights' groups could get behind it.

Ingrid Newkirk, the president for People for the Ethical Treatment of Animals (PETA), told ABCNews.com that within the right circumstances, THC could help.
"Our position is that anything that can help animals — if it's truly, properly administered in the right amount (and) can relieve a dog's pain — then they should be given the same consideration that humans in pain are given," she said.

May 3, 2013

"What I Saw at San Quentin"

The title of this post is the title of this interesting new post at Crime & Consequences by Michael Rushford, President of Criminal Justice Legal Foundation. The post describes at great length a recent tour of what was California's first prison. Here are excerpts from the start and end of a fascinating read:

While I have been through some other state prisons, San Quentin was different. It was opened in 1852 as the state's first prison. It was located on a 432 acre point facing the San Francisco Bay because, at the time, the city was overrun with crime. Although it's obvious that the prison has been expanded over the years, walking through the main gate into the actual prison compound is like stepping back in time. The gate itself is original and large enough to accommodate a stagecoach. Inside the compound is a grassy quad flanked by the gate wall, a cell block, a hospital and a building housing several small churches. In addition to death row, which is isolated from the rest of the prison, roughly 4,500 inmates are housed inside the main prison.

The cell block we saw was identical to those portrayed in the movies: long rows of 5 x 9 foot cells, each with sliding bar doors, a metal toilet, sink, and two bunks, stacked five stories high. Inmates who are able to get along with their colleagues share cells in the largest cell block. There is a fairly large building called the adjustment center for inmates, including about 200 condemned murderers who are either too violent or too vulnerable to mix with other inmates. Richard Allan Davis, for example, lives in the adjustment center because the other inmates hate child killers....

Anyone who believes that murderers in California are living comfortably on death row should take this tour. It is a miserable existence. I now understand why we receive letters from death row inmates asking for our help in expediting their executions. Legislators, bleeding hearts and judges who think that they are helping these murderers by preventing executions are hopelessly naive. Those who think we should improve their living conditions are missing a critical point: these murderers have been sentenced to death for murdering innocent people. Keeping them alive any longer than necessary to confirm their guilt is an injustice.

Finally, San Quentin is a very old, dilapidated facility sitting on 442 acres of the most valuable real estate in California. It should be torn down and the property sold off. Some fraction of the profit should be used to built a modern prison in a less expensive part of California.

How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?

Long time readers know that I am a fan of the federal Crime Victims' Rights Act, 18 U.S.C. § 3771, because it gives express recognition of key rights of participation for federal crime victims and provides means for enforcement of these rights. Also, as the title of this post suggests, the CVRA is potentially a law professor's dream because of the many challenging legal issues that necessarily arise if and whenever there is a major federal crime with lots of obvious (and not-so-obvious) victims who might make claims under the CVRA.

In this post on the night of the capture of Dzhokar Tsarnaev, I quickly flagged a few legal issues the CVRA might raise in his federal prosecution. But especially with new buzz about a possible plea deal to take the death penalty off the table for Tsarnaev following the appointment of federal defender Judy Clarke, I wanted to talk through some CVRA concerns a bit more fully.

First, consider the definition of who has rights under the CVRA: section (e) of 3771 states "the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense." Tsarnaev has already been formally charged with the federal offense of using a weapon of mass destruction resulting in death and using an explosive device in the malicious destruction of property. Even if we only focus on bodily harm and property harm, there were obviously hundreds of persons at the Boston Marathon finish line who were "directly and proximately harmed" (and severely harmed) by Tsarnaev's federal offenses. All those sent to the hospital and so many others on the scene when the two bombs exploded clearly have statutory rights under the CVRA now (though I doubt many, if any, have lawyers (yet) working to help them know and understand their CVRA rights).

Moreover, psychological harm also surely "counts" under the CVRA. This means many thousands of persons in Boston (and perhaps tens of millions of persons throughout the US) could at least reasonably claim to have been "directly and proximately harmed" by the Boston bombings. I wonder if any persons claiming psychological harm might at some point assert they have significant statutory rights under the CVRA now in the prosecution of Tsarnaev.

Second, consider some key statutory rights set forth in the CVRA: section (a) of 3771 states that a crime victim has, inter alia, a
"right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing,..." and a "reasonable right to confer with the attorney for the Government in the case." And, notably, section (c) states that officials "engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, [their CVRA] rights" and that the "prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to [their CVRA] rights.

Because plea negotiations are not conducted as part of "any public proceeding," the Boston bombing victims would not under the CVRA have a right to "be reasonably heard" during the negotiations. But, of course, any court proceeding to formally enter any plea will be a public proceeding, which means every obvious (and not-so-obvious) victims here would have a right to urge a judge to accept (or reject) any plea deal arranged by the parties in this case.

Perhaps even more significantly right now, I would assert that a fair reading of the CVRA places a duty on DOJ officials to make "their best efforts" to confer with at least some (many? most? all?) of the Boston victims whenever there is serious consideration of any plea deal to take the death penalty off the table. Prosecutors also would seem to have a duty under the CVRA to let the Boston bombing victims know that they can (and should?) seek help from an attorney when considering these matters.

Criticially, crime victims have never been thought to have a constitutional right to an appointed attorney, and the CVRA plainly does not create a statutory right to an attorney for crime victims. Consequently, I fear that many (most? all?) of the Boston bombing victims may ultimately get little professional help in securing the potential benefits of the important statutory rights set forth in the CVRA. And maybe in a case in which a federal offense has arguably produced many millions of crime victims, perhaps we have to recognize that, for practical if not principled reasons, there may always be significant functional limits on the rights of even the most sympathetic of crime victims.

Democrats kill death penalty reform proposals in California

As reported in this local article, "legislation to shorten death penalty appeals in California, and bring back the gas chamber, has been rejected by a state Senate committee." Here are the details:

The bill, sponsored by the California District Attorneys Association, was defeated by the Public Safety Committee on Tuesday on a party-line 5-2 vote.

Backers of SB779, including its author, state Sen. Joel Anderson, R-Alpine (San Diego County), said the bill would speed up executions in California, which have been blocked by court orders since 2006. It was introduced following the narrow defeat in November of a ballot measure to repeal the state's death penalty law.

The bill would have limited most condemned prisoners to one round of appeals in the state court system and another in federal court. Other provisions would have eliminated public review of regulations on execution procedures, barred disclosure of the suppliers of drugs used in executions and authorized a new method of gas chamber executions.

California's last execution by cyanide gas was in 1993. A federal judge ruled a year later that the gas chamber at San Quentin caused excruciating pain and violated the constitutional ban on cruel and unusual punishment.

Lethal injections at the prison were halted in 2006 when another federal judge ruled that the executions, carried out by poorly trained staff in a dimly lit chamber, posed an undue risk of a prolonged and agonizing death. The court-imposed moratorium is likely to remain in place at least through 2013 as the state tries to validate new regulations and cope with a shortage of execution drugs.

"Proposals would legalize marijuana in Ohio"

The title of this post is the headline of this article that caught my eye this morning in my own local paper. Here are the basics of the story:

As poll numbers show Ohioans are growing increasingly comfortable with the idea of marijuana use, a Youngstown Democrat wants to give people the chance to make the drug fully legal in Ohio.

Rep. Robert F. Hagan has made a few attempts over the years to persuade his colleagues to allow for the use of medical marijuana in Ohio, and each effort has died a quiet death.
A spokesman for Speaker William G. Batchelder, R-Medina, declined to comment on the pair of proposals Hagan introduced yesterday.

One is a bill that would allow patients with certain chronic conditions such as cancer or sickle-cell anemia to use marijuana for treatment. Eighteen other states have approved similar measures.
“In addition to the studies that show marijuana to be a valuable treatment option for chronic pain, nausea and seizure disorders, I have heard countless stories of how cannabis has made a difference in the lives of people who are sick or dying,” Hagan said.

His other proposal, modeled after an amendment recently passed in Colorado, would ask voters to approve allowing people 21 or older to purchase and use marijuana. The drug could be sold only by state-licensed establishments and would be subject to a 15 percent excise tax.
“With billions upon billions spent on the war on drugs with little progress to show for it, it is time for more-sensible drug policy in this country,” Hagan said, arguing that the revenue could help restore cuts to education and local governments.

It takes a three-fifths vote for the legislature to put an issue on the ballot.
A recent Saperstein Associates poll of more than 1,000 Ohioans for The Dispatch found that legalizing medical marijuana was overwhelmingly favored, 63 percent to 37 percent, but making pot completely legal was opposed by a 21-point margin.
Martin D. Saperstein, head of the Columbus polling firm, noted that surveys in other states are finding growing acceptance of legalizing marijuana, especially if it would be regulated and taxed.

As I will be blogging about in the coming months, in the Fall I will be teaching a seminar at my law school titled "Marijuana Law, Policy and Reform." Because Ohio is still a fairly conservative state socially, I doubt talk of marijuana reforms will be much more than talk over the next few years. But I am pleased to see the talk getting started, and it will be especially interesting to watch here whether and how public opinion may change as more and more states move forward with marijuana reform experiments.

Nebraska legislature sends "Miller fix" bill to governor

As reported in this local article, headlined "Lawmakers pass new sentencing limits for juveniles," a bill responsive to new Eighth Amendment doctrine which modifies the sentencing options for young killers has been passed by Nebraska's legislature. Here are the details:

With the bill (LB44), juveniles could be sentenced to a minimum 40 years to life, with eligibility for parole after 20 years. Judges could continue to use discretion on life sentences for young people who commit first-degree murder. And they could sentence a youth to more than the minimum.

The bill grew out of the state's need to act on a June U.S. Supreme Court ruling that indicated states must provide some meaningful opportunity for release based upon demonstrated maturity and rehabilitation.
The courts would have to consider mitigating factors in sentencing, such as age, maturity and home environment, including previous abuse of the juvenile.

LB44 passed final reading Thursday on a 38-1 vote.
Lincoln Sen. Danielle Conrad was the lone vote against it.
"I just felt like the mandatory minimums were too extensive, particularly when we are talking about juveniles," she said.

But there are good aspects of the bill, Conrad said.
"And I appreciate the hard work and compromise that the committee and the sponsors and other members diligently worked on."...

The bill doesn't address retroactive action for those inmates who committed their crimes as juveniles and are serving life sentences. Judiciary Committee Chairman Brad Ashford has said the courts would have to address that.
If signed by the governor, those men and women serving mandatory life sentences could file requests to have their sentences reviewed.

I have plans this summer to write an article explaining why I think, both as a matter of law and as a matter of policy, all significant changes to sentencing rules and procedures ought to be presumptively retroactive rather than presumptively non-retroactive (subject to constitutional limits/problems). Consequently, I think court should presume retroactivity in a setting like this one when it appears a legislature has opted not to address whether a new sentencing statute should be retroactive and has punted the issue to the courts to fill in this legislative gap.

May 2, 2013

"Gideon's Shadow"

The title of this post is the title of this notable new piece by Justin Marceau, which is available via SSRN. Here is the abstract:

The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elaborating on this paradoxical aspect of the Gideon right -- that the very prominence of the right tends to dilute other rights, or at least justify limitations on non-Gideon rights -- this essay analyzes the judicial and scholarly practice of employing the counsel right as a cudgel to curb other rights.

This piece now joins my list of must-read pieces providing a provocative perspective during a period that has included lots of Gideon celebrations now that the decision is 50 years old. Here are links to posts noting other articles and commentary in this milieu:

Alabama mass shooter wants (but cannot get) a death sentence rather than LWOP

A helpful readers sent me this fascinating article from Alabama, which is headlined "Man charged in Copper Top shooting writes in letter to judge that he is sorry and had asked for death penalty." Here are the fascinating details:

Nathan Wilkins, the man charged with injuring 18 people in a July 2012 shooting at The Copper Top bar in downtown Tuscaloosa, told a judge in a letter that he is sorry and that he has asked for a death sentence.

In the letter dated April 22 sent to Tuscaloosa County Circuit Judge Brad Almond and filed Tuesday morning, Wilkins wrote that he has issues with his court-appointed attorney. "I know I can't get a fair trial in Tuscaloosa," the letter states. "It is obvious by your actions so far in making me keep the same lawyer that you appointed. I have written you telling you the problems with him but instead of taking care of it you chose to ignore it. Why would I want a lawyer representing me who has me already convicted and sentenced me to life in his mind."

In a letter sent to the judge in December, Wilkins asked for a new attorney and told the judge that he had no memory of the night. He also wrote that he had been prescribed medication that made him suicidal.

Wilkins, 45, was indicted in August on 68 counts in connection with a July rampage that included a late July 16 shooting in the Indian Lake subdivision in Northport and an early July 17 shooting at the Copper Top in downtown Tuscaloosa's Temerson Square. He is accused of using an assault-style rifle in the shootings and of setting fire to his former employer's property in Brookwood and in Northport.

Wilkins turned himself in on July 17 at a FedEx store in Jasper. He remains in the Tuscaloosa County Jail on $2 million bond. A trial has been scheduled to begin Monday.

"I had asked Ted Sexton and my lawyer to give me the death penalty but instead they want to put me in prison for life because it wasn't bad enough because no one died," the letter states. "Why send me to prison for life and support me with taxpayer money. That used to make me so mad when I wasn't in jail and paying taxes and had to support people like that. You can ask anyone who knows me that this is what I believe. So I am taking this out of your hands and sentencing myself to death."

Attempted murder is not included with capital offenses under Alabama law. "I cannot bear to be away from my family especially my grandkids for life," the letter states. "I would like to tell all involved I am sorry. I wish this incident would bring attention to prescription sleeping pills, especially Ambien, before it ruins someone elses (sic) life! I want to say I'm sorry to everyone involved. Thank you for giving me no other choice."

This story raises so many interesting and challenging issues, I am not sure where to start. Just discussion purposes, let me ask three different questions of three different groups of potential readers:

1. For strong death penalty opponents: "Do you think this defendant, who seems all but certain to get an LWOP sentence for his many crimes, should be allowed/enabled to commit suicide if and when he gets an LWOP sentence?"

2. For strong death penalty proponents: "Doesn't this case demonstrate that there are some defendants who truly view an LWOP sentence to be worse than death?"

3. For everyone else interested in a constitutional debate: "Do you think that, because (a) death has been deemed by the US Supreme Court to be a "cruel and unusual" punishment for Nathan Wilkins's crimes and (b) he really seems to view LWOP a punishment worse than death, is there at least a reasonable basis for his lawyers to claim that LWOP for Nathan Wilkins should also be considered "cruel and unusual" because their client (genuinely?) views such a punishment to be crueler than death?"

A big day and big new realities for criminal justice in Maryland

As reported in this Washington Post article, headlined "O’Malley to sign death penalty repeal and scores of other bills today," two big national criminal justice reform stories are finding expression in one day of bill signing in Maryland. Here are the basics:

Maryland Gov. Martin O’Malley plans to sign more than 250 bills on Thursday, including legislation to repeal the death penalty, allow undocumented immigrants to get driver’s licenses and legalize medical marijuana....

The bills were among those passed in an extraordinarily busy 90-day legislative session that ended last month. A final batch of bills is scheduled to be signed May 16.

With the governor’s signature Thursday, Maryland will become the sixth state in as many years to end capital punishment. Under the legislation, which O’Malley championed, death sentences would be replaced with life in prison without the possibility of parole.

The Catholic Church, which advocated for repeal, is planning to celebrate the signing by lighting up the Baltimore Basilica overnight. The landmark is the first Catholic cathedral in the United States.

MDPetitions, com, a conservative group, is expected to announce soon whether it will launch a petition drive to force a statewide vote on the death penalty repeal.
If the group were to collect enough signatures, the law would be put on hold pending the outcome of a November 2014 referendum.

The legislation legalizing medical marijuana limits distribution to academic medical centers, which will be required to monitor patients and publish their findings.

Legislative analysts say it is unlikely that dispensing of the drug would begin before 2016. It is also unclear how many institutions might choose to participate. Two of the state’s most prominent — the University of Maryland Medical System and Johns Hopkins University — have been reluctant to get involved.

But supporters of the measure have hailed it as a significant step toward a compassionate treatment option for people with such illnesses as cancer and multiple sclerosis. Eighteen states and the District have enacted similar laws.

"Can a Hard-Core Criminal Become a Better Person?"

The title of this post is the headline of this notable new piece up at Slatecoming from Quora where questions submitted by readers get answered by experts or persons in the know. This question was answered by by Chris Richardson, a consultant, and here are excerpts:

Yes. My father did.

He was born a sharecropper in Georgia in 1927. His mother and father, never on easy terms (this is an understatement), separated when he was about 12 years old, and she moved with him and his younger sister to Boston, where she became a popular actress in the New Deal-funded black Shakespearean theater there....

They lived, of course, in the ghetto. My father became a young hustler very early in his career there, pulling various scams to bring a little extra cash to the family....

When he was 14, the United States went to war. My father wanted to join the fighting, but not only was his skin color a barrier, he was also too young to enlist. But he knew he had to get out of Boston and the life of crime (and punishment); he didn't need to be clairvoyant to see in his future.

He eventually figured out how to join a mercenary group recruiting in Canada, was trained, outfitted, and shipped to China, where he fought against the Japanese during the war and later for the Communist Chinese government in various skirmishes afterward. From this, he learned the following: fluency in both Mandarin and Cantonese, much of which he retained in later life; a predilection for Asian women, and indeed for all things Asian; and how to do what was necessary to survive, including killing other humans without reservation or excessive remorse.

The latter skill paid off when, as a young man in the late 1940s, he was shipped to Los Angeles with nothing but a thank you from the Chinese government, a couple hundred bucks in his pocket and the shirt on his back. He immediately learned that things hadn't changed much in his favor back home, so finding honest work for decent pay was not an option. So he started hustling again, eventually becoming the leader of a group of drug smugglers bringing various contraband into Texas, Arizona, and California from Mexico. He learned Spanish. In the course of these activities, he committed any number of violent crimes, including, rumor has it, murder.

A few years later, he was arrested for drug smuggling, tried, convicted, and sent to prison, where he remained for nearly 15 years, until his release in the early 1960s.

And this time, things were different. The "crazy, liberal" California state government had created a program specifically designed to actually reform ex-convicts, including black ones, by sending them to college on special scholarships. My father enrolled in Sacramento City College, transferred to UC-Davis (yes, that's my alma mater, too), and excelled. He earned multiple degrees in political science, met and married a crazy, rich white hippie chick from Orinda (my mother), fathered a son (me), and eventually landed a job as a professor of political science at the California State University in Chico.

He retired from Chico State in 1993, at the ripe old age of 66. Nine years later, he died in his living room of a heart attack, five days before the first anniversary of the Sept. 11 terrorist attacks, having never committed another crime, other than the occasional traffic violation, again.

May 1, 2013

DOJ review confirms government waste and mismanagement of BOP's handling of compassionate release

Public policy groups have long criticized the many terrible ways in with the federal Bureau of Prisons (BOP) administered the authority Congress provided it for the early release of prisoners in dire condition. Most notably, late last year, as discussed here, Human Rights Watch and Families Against Mandatory Minimums today released a major report criticizing the poor administration of the federal compassionate release program. Today, this big new report from the Justice Department's Office of Inspector General confirmed what critics have long said. Here are key excerpts from the final portion of the report:

We concluded that an effectively managed compassionate release
program would result in cost savings for the BOP, as well as assist the
BOP in managing its continually growing inmate population and the
resulting capacity challenges it is facing. We further found that such a
program would likely have a relatively low rate of recidivism. However,
we found that the existing BOP compassionate release program is poorly
managed and that its inconsistent and ad hoc implementation has likely
resulted in potentially eligible inmates not being considered for release.
It has also likely resulted in terminally ill inmates dying before their
requests for compassionate release were decided. Problems with the
program’s management are concentrated in four areas.

First, the BOP’s regulations and Program Statement do not
establish appropriate medical and non-medical criteria for
compassionate release consideration and do not adequately define
“extraordinary and compelling” circumstances that might warrant
release....

Second, the BOP has failed to put in place timeliness standards at
each step of the review process....

Third, the BOP does not have procedures to inform inmates about
the compassionate release program....

Fourth, the BOP does not have a system to track all compassionate
release requests, the timeliness of the review process, or whether
decisions made by institution and regional office staff are consistent with
each other or with BOP policy....

The BOP also does not track the time it takes to process requests
and has no formal or standard means of determining the date the review
process begins. Consequently, the BOP cannot monitor its process
effectively. This is especially problematic for inmates with terminal
medical conditions, and we found that 13 percent of inmates whose
requests had been approved for compassionate release by a Warden and
Regional Director died before a decision was made by the BOP Director....

Further, the BOP does not maintain cost data associated with the
custody and treatment of inmates who may be eligible for compassionate
release. Despite this lack of data, the BOP reported to Congress that it
could save $3.2 million by expanding the compassionate release
program....

Finally, we found the rate of recidivism for inmates approved and
released through the existing compassionate release program to be low
compared with the overall rate for federal inmates released into the
community.

Via this post at The BLT, which is titled "Man in Landmark Supreme Court GPS Case Pleads Guilty," we find out today that Antoine Jones' success in convincing the Supreme Court to declare his warantless GPS tracking to be an unconstitutional search in the end allowed him to secure a plea deal with a sentence of only 15 years in prison rather than his original federal LWOP term. Here how:

Facing his fourth trial, the man at the center of a landmark U.S. Supreme Court ruling on GPS tracking pled guilty today to a drug conspiracy charge and was sentenced to serve 15 years in prison.

Antoine Jones was arrested in 2005 and charged with participating in a drug trafficking ring in the Washington area. Jones will receive credit for time already served, meaning he'll spend an additional seven years in jail. After he is released, U.S. District Judge Ellen Segal Huvelle sentenced him to five years of supervised release and 200 hours of community service.

"I think you can teach other people how to stay out of trouble," Huvelle said to Jones during today's hearing. Huvelle has handled the case from the beginning. "It's been a long haul, Mr. Jones," she said.

Jones stood trial three times. His first trial ended in a mistrial in 2007. He was found guilty at the second trial and received a life sentence, but the U.S. Court of Appeals for the D.C. Circuit vacated that conviction after finding the government violated his Fourth Amendment rights through the warrantless use of a Global Positioning System tracking device.

Last year, the U.S. Supreme Court affirmed the D.C. Circuit's ruling, meaning prosecutors couldn't use the GPS data at trial. The government had used the information to link Jones to a drug house in Maryland. During the course of the investigation, the authorities never saw Jones personally handle any drugs.

Following a third trial earlier this year, in which Jones represented himself, the jury split and Huvelle declared a mistrial. The government announced shortly after that it planned to seek a fourth trial.

Following today's hearing, Assistant U.S. Attorney Darlene Soltys declined to discuss details of the plea negotiations, except to confirm that Jones continued to represent himself. She also declined to comment on the resolution of the case....

Jones, who waived his right to appeal, requested Huvelle recommend he be placed in a federal prison near Atlanta, where he has family. Huvelle agreed to make the recommendation; the Federal Bureau of Prisons will make the final decision about his placement.

Huvelle urged Jones to do something "legitimate" with his life after serving his time in jail. She pointed out that some of the jurors thought Jones performed well as his own lawyer and that he had wasted his talents.

As reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto:

Human Rights Watch said its report, being released Wednesday, is the most comprehensive examination to date of the impact that registry laws have on juvenile sex offenders. "Of course anyone responsible for a sexual assault should be held accountable," says lawyer Nicole Pittman, the report's author. "But punishment should fit both the offense and the offender, and placing children who commit sex offenses on a public registry — often for life — can cause more harm than good."

The report says the laws, which require placing offenders' photographs and personal information on online registries, often make them targets for harassment and violence. In two cases cited in the report, youths were convicted of sex offenses at 12 and committed suicide at 17 due to what their mothers said was despair related to the registries. One of the boys, from Flint, Mich., killed himself even after being removed from the list....

The registry laws generally include restrictions that prohibit offenders from living within a designated distance of places where children gather, such as schools and playgrounds. "They often struggle to continue their education," Human Rights Watch said. "Many have a hard time finding — and keeping — a job, or a home."

According to Human Rights Watch, 747,000 adult and youth sex offenders were registered nationwide as of 2011. The organization said it was unable to quantify how many were juveniles, but it interviewed 281 youth sex offenders while preparing the report, as well as defense attorneys, prosecutors, judges, law enforcement officials and victims of child-on-child sexual assault....

Under a federal law, the Adam Walsh Act, states are required to include certain juvenile sex offenders as young as 14 on their registries. Some states have balked at complying with this requirement, even at the price of losing some federal criminal-justice funding. Other states have provisions tougher than the federal act, subjecting children younger than 14 to the possibility of 25-year or lifetime listings on public registries.

According to Pittman, it's fairly common in about 35 states for juveniles to be placed on public sex-offender registries. Other states take that step only for juveniles convicted of sex offenses in adult court, she said, while a few place juvenile sex offenders only on registries that are not accessible by the public.

The report recommends that all juveniles be exempted from the public registration laws, citing research suggesting they are less likely to reoffend than adult sex offenders. Short of a full exemption, the report says, registration policies for juveniles should be tailored to account for the nature of their offense, the risk they pose to public safety and their potential for rehabilitation....

Scott Burns, executive director of the National District Attorneys Association, said his organization would not support a blanket exemption of juveniles from the sex-offender registries. But he said prosecutors should have the discretion to require registration or not, based upon each case.

"If a 15-year-old 'sexted' a picture of him or herself, it is safe to say that prosecutors would take appropriate steps to ensure that person isn't required to become a registered sex offender for life," Burns said in an e-mail. "If a 17-year-old had committed multiple violent sex offenses against children, registration as a sex offender would most likely be recommended."...

Mai Fernandez, of the center for victims of crime, said the entire sex-offender system — covering both juveniles and adults — is flawed and needs an overhaul. "If you know a young person living in your neighborhood has raped someone, there are things that should kick in — tighter supervision, more services — to be sure that child doesn't commit that crime again," Fernandez said. "That's more important than the registry."

The full 111-page HRW report, which is titled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US," can be accessed via this link in both complete pdf and on-line form. Here is how that page describes the report:

This 111-page report details the harm public registration laws cause for youth sex offenders. The laws, which can apply for decades or even a lifetime and are layered on top of time in prison or juvenile detention, require placing offenders’ personal information on online registries, often making them targets for harassment, humiliation, and even violence. The laws also severely restrict where, and with whom, youth sex offenders may live, work, attend school, or even spend time.

Ohio completes execution of "baby raper" and killer of infant

As detailed in this local report, Ohio this morning carried out an execution this morning of a convicted murderer who made a uniquely disconcerted and unsuccessful argument for clemency in recent months. Here are the details:

A man convicted of killing a 6-month-old as he raped her was executed today despite his arguments that he never meant to hurt her.
Steve Smith, 46, was executed by lethal injection for the September 1998 killing of his live-in girlfriend’s daughter, Autumn Carter, in Mansfield in northern Ohio. He was pronounced dead at 10:29 a.m.

Smith had recently tried to get his sentence reduced to life in prison, arguing that he was too drunk to realize that his assault was killing Autumn and didn’t mean to hurt the baby. The Ohio Parole Board and Gov. John Kasich unanimously turned him down, with the board calling him “the worst of the worst.”

“Smith took the life of an innocent 6-month-old infant while using the baby to sexually gratify himself,” the board said in its decision. “It is hard to fathom a crime more repulsive or reprehensible in character.”

Among the witnesses to the execution was Smith’s 21-year-old daughter, Brittney, who said she has never believed he committed the crime.
“I know my dad’s innocent,” she said. “I do not believe he did this, and you know, he raised all my cousins, my sister before I was even born, and he never did anything (sexually).”

Brittney Smith, who was 7 when her father was arrested for Autumn’s killing, said she can’t reconcile the crime with the dad she knew, the man who taught her and her sister to fish and play card games and who would watch Disney’s The Lion King over and over with them.
She called him “a wonderful dad” and said she recently introduced him to his only grandchild, a 16-month-old girl named Alannah, whom he was allowed to hold and pose for photos with at a state prison.

Autumn’s mother and other family also had planned to witness the execution and considered it justice.
Autumn’s aunt, Kaylee Bashline, said that her family has no reason to doubt that Smith is guilty, especially with his recent admission, and that it’s not fair that he had 15 years since the crime to live, visit family and say his goodbyes.
“He got all that, and what did she get?” Bashline said. “She got to be killed and put in the ground where none of us gets to see her anymore. I don’t find it right.”

Back on the night of Sept, 29, 1998, Autumn’s mother, Kesha Frye, was awoken by Smith, her live-in boyfriend of four months.
Smith, who was extremely drunk and naked, laid a naked and lifeless Autumn on Frye’s bed, according to court records.

Frye rushed the baby and her other 2-year-old daughter to a neighbor’s house and called 911. Autumn was pronounced dead after doctors tried to revive her for more than an hour, and Smith was arrested.
The baby was covered in bruises and welts, had cuts on her forehead and had severe injuries showing she had been brutally raped, though no semen was present....

At trial, Smith didn’t testify in his own defense on the advice of his attorneys, even as prosecutors repeatedly referred to him as a “baby raper,” showed pictures of Autumn’s battered body and told jurors that her assault lasted up to a half-hour.
Expert witnesses for Smith testified that he might have accidentally suffocated the girl within three to five minutes of the assault.
The jury found Smith guilty of aggravated murder and sentenced him to die.

At an April 2 hearing in which Smith sought to have his death sentence reduced to life in prison, he admitted to the crime and said he didn’t mean to kill Autumn.
He also told the Ohio Parole Board that he was not in his right mind the night of the crime and has to live every day with what he did. He said he was sorry and wished he could ask Autumn for forgiveness.

Smith became the 51st inmate put to death in Ohio since it resumed executions in 1999. The state has enough of its lethal injection drug, the powerful sedative pentobarbital, to execute two other inmates before the supply expires. Eight more inmates are scheduled to die from November through mid-2015.

Interestingly, Smith's execution was only the 10th in the United States through the first third of 2013. Unless the pace of executions picks up considerable steam through the next few months, it now seems quite possible that the total number of execution in the US this calendar year may be lower than any years since the early 1990.

Given the broader death penalty trends seen throughout the last few years, it seems now quite possible that President Obama's second term could end up having many fewer total executions than during his first term and during the two terms of his two prior predecessors. (There were a modern record of well over 300 executions nationwide during Bill Clinton's second term from 1997 through 2000, and and I think the likely over/under for executions during Obama's second term might reasonably be set at around 100.)

Is adjective "draconian" fitting for a proposed 13-year prison sentence for insider trader?

The question in the title of this post is prompted by this lengthy new Bloomberg article about the defense's sentencing submission in a high-profile, white-collar federal sentencing scheduled for later this month. The Bloomberg article is headlined "Chiasson Seeks Leniency From U.S. Judge Citing Charitable Deeds," and here are excerpts:

Level Global Investors LP co-founder Anthony Chiasson, convicted of an insider-trading scheme that reaped $72 million, asked a judge to give him less time in prison than the 13-year term called for by U.S. sentencing guidelines.

Lawyers for Chiasson, 39, called such a sentence “draconian” in a, April 29 court filing. They urged U.S. District Judge Richard Sullivan in Manhattan to impose an unspecified shorter prison term, saying the alleged crimes were “aberrant” and that Chiasson has led an “exemplary life.”

Defense lawyers Greg Morvillo and Reed Weingarten cited Chiasson’s charitable work, including his effort to save his Catholic Jesuit high school in Portland, Maine, from closure, the creation of a scholarship program for his alma mater, Babson College, and his contributions to the Robin Hood Foundation and the Michael J. Fox Foundation.
“Anthony Chiasson is an extraordinary man,” Morvillo and Weingarten said in a memo to Sullivan. “But for the conduct that brings him before the court, Anthony has led an exemplary life.”

Chiasson, who began his career on Wall Street at Solomon Brothers and left SAC Capital Advisors LP to start the hedge fund, is scheduled to be sentenced May 13.
While U.S. court officials said that based on non-binding guidelines Chiasson should serve 121 to 157 months in prison, his lawyers said the appropriate range is 78 to 97 months.

A Manhattan federal jury in December found Chiasson guilty of five counts of securities fraud and convicted former Diamondback Capital Management LLC portfolio manager Todd Newman of one count of conspiracy and four counts of securities fraud. Newman is scheduled to be sentenced May 2.
The U.S. alleged that the two portfolio managers were part of a “corrupt chain” of hedge-fund managers and analysts and insiders at technology companies who swapped and traded on illicit tips. The U.S. said Level Global earned $68 million as a result of the insider trading based on material nonpublic information Chiasson received from Spyridon “Sam” Adondakis, a former Level Global analyst who worked for him.

Defense lawyers estimated the fund earned $11.7 million as a result of trading in the stocks of Dell Inc. and Nvidia Corp. They disputed the government’s allegation that Chiasson based the transactions on illicit information and argued that federal sentencing guidelines allow prosecutors to inflate profits generated as a result of alleged crimes. “There is only one reason the range is so high: the guidelines’ unrelenting predisposition to punish profit,” Morvillo and Weingarten said.

Morvillo and Weingarten also argued that Chiasson “should not be required to forfeit gains of any co-conspirators.” They said that the fund earned more than $21.6 million on trades by David Ganek, a Level Global co-founder who was ruled by Judge Sullivan to be an uncharged co-conspirator in the insider- trading scheme. Adondakis, who pleaded guilty, testified that he didn’t tell Ganek about the source of his tips. Ganek hasn’t been charged with wrongdoing....

Chiasson’s lawyers argued that he deserves a sentence comparable to others convicted of insider trading, including former Goldman Sachs Group Inc. director Rajat Gupta, who was ordered to serve two years in prison, and former Primary Global Research LLC executive James Fleishman and Michael Kimelman, the co-founder of Incremental Capital LLC, who were both given 30- month prison terms.
In January, a federal appeals court allowed Gupta to remain free while he fights his conviction. Both Fleishman and Kimelman were recently released from prison.

The adjective draconian is often used now as a synonym for unduly harsh punishments, and I am sure I have sometimes used the term this way in various settings. But the faint-hearted linguistic originalist in me cannot help but note that arguably no prison terms should be really called draconian because incarceration was largely an unknown punishment in achient Greece and Draco the lawgiver was (in)famous for prescribing death as a punishment for both major and minor crimes. (With tongue-in-cheek, I suppose maybe a different (but less real) Draco could be expected to be a proponent of long prison terms, though I this this character probably realized he and his family only narrowly avoid imprisonment in Azkaban.)

Historical and literary references aside, these latest insider-trader, white-collar sentencing cases are surely worth watching closely. My sense is that, especially with the economy seeming to be improving, there is diminishing public and social pressure to "throw the book" at wall-street types like Anthony Chiasson. And yet, as the arguments in Chiasson's case highlight, every below-guideline sentence given in major white-collar cases provide a strong defense argument in later cases that only below-guideline sentences are proper pursuant to the sentencing commands of 3553(a).

April 30, 2013

"The Boston Bomber Should Face The Possibility Of The Death Penalty"

The title of this post is the headline of this notable new op-ed published today in Forbes and authored by (frequent SL&P blog commentor) William Otis. Here are excerpts from this piece:

Dzhokhar Tsarnaev and his brother murdered three people at the Boston Marathon, and grossly mutilated dozens more. The brother was killed in a shootout with police. The question is what justice Dzhokhar should face. The answer, as the Justice Department apparently understands, is a jury empowered to consider the death penalty....

Wanting justice is not wanting vengeance. It is for this reason that our most honored Presidents — Washington, Lincoln and FDR — not only supported but used the death penalty. President Obama supports it. At least three-fifths of Americans likewise support it. Liberal New York Sen. Chuck Schumer says he supports it for the Boston killer. This is not because these people are bloodthirsty or revenge-driven. It’s because a prison sentence, no matter what its length, hardly seems to fit some gruesome, hate-driven, calculated crimes.

But that’s not the end of it. Contrary to a typical abolitionist claim, the death penalty is a deterrent, as the majority of scholarly studies has found. Anecdotal evidence tells us the same thing; California Sen. Diane Feinstein once recounted the story of a robber who left his gun at home for fear that, if he used it, he could face a death sentence....

While the are some cases in which a reasonable person could think we’ve got the wrong guy, this is not one of them. There is simply no sane account in which Dzhokhar Tsarnaev didn’t do it.

Some have voiced racial objections to the death penalty.... But that has no bearing in this case in any event, since neither Tsarnaev nor his victims is a member of a race that has historically suffered discrimination. The legacy of Jim Crow simply does not exist in this case.

The central reason to keep the death penalty available is graphically illustrated here. The crime was unbelievably sinister, cruel and sadistic; the victims, including an eight year-old, numerous; the perpetrator unrepentant; and his guilt not open to question by any reasonable person. A society without the moral confidence to use the ultimate punishment in such a case has all but announced that it has no moral confidence at all.

To say that the jury should be empowered to consider the death penalty for Tsarnaev is not necessarily to say it should be imposed. There may be mitigating circumstances, not presently in sight, that would warrant a lesser sentence. It is the genius of the jury system that it takes cases one at a time. But it is for exactly that same reason that we should not take the death penalty off the table in advance, before all the facts -- possibly mitigating, and possibly even more damning -- are known.

Though not explicitly stated by Bill Otis in this Forbes commentary, I perceive an implicit suggestion here that it would only be proper in this case for a federal jury after a transparent in-court sentencing hearing, and not for a federal prosecutor via an unexplained back-room plea deal, to decide what the proper punishment for Dzhokhar Tsarnaev. And via this post at Crime & Consequences, titled "No Quick and Dirty Deals," Bill Otis makes a bit more explicit why he thinks it would, at least right now, be inappropriate for prosecutors "to take capital punishment off the table in exchange for Tsarnaev's cooperation." Bill concludes his C&C post this way: "In this high stakes showdown, give no deals to this devil and let a jury do what the Framers designed it to do."

For a host of reasons, I largely agree with Bill in this instance that the final punishment for Dzhokhar Tsarnaev should ultimately be decided by a jury (or a judge). My principal reason for this view in this is because I believe all sentencing decision-making should be as deliberative, open and transparent as possible, and that final sentencing outcomes should result from adjudicative judgements made by neutral judicial-branch actors rather than via opaque bargains and unreviewable policy decisions made by executive branch officials.

While I am pleased that, in this "high-stakes" setting, Bill Otis sees the value of judicial branch actors having ultimate sentencing authority, I am disappointed and somewhat confused why he has a different view when prison sentences are at issue. Specifically, in long comment exchange to a post about reform of federal mandatory minimums, Bill expressed great concerns about letting judges select final sentencing outcomes on the record according to federal sentencing law rather than letting prosecutors make this decision behind closed doors based on their charging and bargaining instincts.

Dare I suggest it is only because Bill Otis likes the potential outcome of judicial-branch sentencing (rather than executive branch sentencing) in the Tsarnaev case that he now is keen to assert that prosecutors should not take a particular sentencing option off the table? (For the record, I think it is fine for Bill Otis (or anyone else) to believe/decide that he will always favor whichever sentencing decision-maker is likely to be harsher (or softer). But I hope he (and others) recognizes that such a position --- whether driven by a desire for consistent sentencing harshness or sentencing leniency --- necessarily prioritizes a substantive commitment to certain kinds of sentencing outcomes, and suggests that certain substantive sentencing ends always justify whatever procedural means are needed to get there.

Mizzou Supreme Court hears arguments concerning Miller's impact

As reported in this local article, headlined "MO Sup Court hears cases of two St. Louis juveniles sentenced to life without parole," the top court in the Show Me State is trying to figure out how it must adjust its sentencing system in the wake of last year's Miller ruling by the US Supreme Court. Here are the basics of what is now before the Supreme Court of Missouri:

Two St. Louis cases were among the first to go before the state's high court Tuesday as it tries to decide what should be done with dozens of juvenile murder convicts who were sentenced to mandatory terms of life without parole before the U.S. Supreme Court declared it unconstitutional....

One of those is the high-profile case of Ledale Nathan Jr., who was 16 when he and an accomplice stormed into a home in the LaSalle Park neighborhood of St. Louis, burglarized it and shot the family members inside. One woman was killed and two others, a city firefighter and police officer, were wounded.

In Missouri, first-degree murder carries only two sentencing options: life without parole, or death (which the U.S. Supreme Court had already ruled could not apply to juveniles).
But in the June 2012 Miller v. Alabama decision, the U.S. Supreme Court determined that while juveniles can be sentenced to life without parole, it cannot be automatic and must only be done after the judge or jury has the opportunity to hear mitigating circumstances that include the defendant's age and a range of other factors.

The state legislature is expected to ultimately decide how to change the statutory range of punishment to comport with the court ruling, clearing things up for cases going forward.
But in the meantime, the state supreme court is being asked to consider what the Miller decision means for the older cases — both those on direct appeal, and those that have exhausted their state court remedies.

There are 84 cases in Missouri in which a person is currently serving life without parole for an offense committed as a juvenile, according to the last count by the Missouri Department of Corrections. Of those cases, 46 of the offenders were age 17 at the time of the crime, 25 were age 16, 11 were age 15, and two were age 14.

Of the three cases argued on Tuesday, two were being heard on direct appeal, one being the Nathan case. The state, represented by Attorney General Kris Koster's office, conceded that the two cases should get a new sentencing hearing, but argued the only options should be life — which amounts to 30 years in Missouri — or life without parole.

"Allowing life and life without parole achieves as close as the court can get without adding words or redrafting the statute," argued Assistant Attorney General Evan Buchheim, in the Nathan case. Buchheim said until the legislature decide on anything different, "we've got to work with what we've got."

But Nathan's attorney, Jessica Hathaway, and the American Civil Liberties Union, which argued as a friend of the court, contended that route would go beyond the court's authority by rewriting the statute. They argued instead for a sentencing range that applies for second degree murder, or a Class A felony, which is ten to 30 years (life)....

Similar arguments were made in the other case being heard on direct appeal, the St. Louis case of Laron Hart, convicted of the fatally shooting of a man and robbery of a woman at gunpoint in January 2010, when he was 17. In the third case involves the 1995 conviction of a McDonald County woman, Sheena Eastburn, as an accomplice in the shooting death of her husband. The state has argued Miller does not apply to her case because she has exhausted her appeals, among other procedural issues.

US Sentencing Commission names new executive director

I am very pleased to report, as detailed in this official press release, that a former law school classmate of mine has now been named as the next staff director of the US Sentencing Commission. (Apparently, the fact that Harvard Law School lacked any kind upper-level sentencing course in the early 1990s did not unduly retard the professional development of some of its students). Here are the details:

The United States Sentencing Commission announced the appointment of
Kenneth P. Cohen as its new Staff Director, succeeding Judith W. Sheon. Cohen has served as the
Commission’s General Counsel since February 2007 and previously
served as its Director of Legislative Affairs. His appointment becomes effective on June 2, 2013....

Cohen graduated
with highest distinction
from the University of Virginia in 1988 and
cum laude
from the Harvard Law School in 1993. Previously
he served as a credit analyst for Chemical Bank
in New York, and he was an associate at the
Washington D.C. law firm of Covington & Burling
from 1993 to 1997. He also served at the Commissi
on as an attorney advisor to then-commissioner
Judge Deanell Tacha, and he served on detail as
counsel to Senate Judiciary Committee Chairman
Arlen Specter from 2005 to 2006.

The same press release also notes another notable recent new hire on the USSC: "The Commission also last month added Noah D. Bookbinder as Director of
Legislative and Public
Affairs. Bookbinder previously served as Chief Counsel for Criminal Justice for the Senate Judiciary Committee, where he worked from 2005
to 2013, and as a Trial Attorney for the United
States Department of Justice’s Public Integrity Section from 1999 to 2005. He graduated summa cum laude from Yale University in 1995 and
with distinction from Stanford Law School in 1998 and
served as a law clerk to United States District Judge Douglas Woodlock."

Might the Gov of Virginia soon be a federal criminal defendant?

The question in the title of this post is prompted by this new Washington Post piece, headlined "FBI looking into relationship between McDonnells, donor." Here are the basics:

FBI agents are conducting interviews about the relationship between Virginia Gov. Robert F. McDonnell, his wife, Maureen, and a major campaign donor who paid for the food at the wedding of the governor’s daughter, according to four people familiar with the questioning.

The agents have been asking associates of the McDonnells about gifts provided to the family by Star Scientific chief executive Jonnie R. Williams Sr. and actions the Republican governor and his wife have taken that may have boosted the company, the people said.

Among the topics being explored, they said, is the $15,000 catering bill that Williams paid for the 2011 wedding of McDonnell’s daughter at Virginia’s historic Executive Mansion. But questions have extended to other, previously undisclosed gifts from Williams to Maureen McDonnell as well, they said.

The interviews, at which Virginia State Police investigators were present, began in recent months as an outgrowth of a federal investigation of securities transactions involving Star Scientific, which produces a dietary supplement called Anatabloc. The company disclosed that probe in a regulatory filing last month, saying it had received subpoenas from the U.S. attorney’s office for the Eastern District of Virginia.

Now, federal officials are trying to determine whether to expand that investigation into a broader look at whether McDonnell or his administration took any action to benefit Star Scientific in exchange for monetary or other benefits, according to the four people familiar with the interviews. It is unclear whether the probe will be broadened.

"D.C.’s Race Disparity in Marijuana Charges Is Getting Worse"

The title of this post is the headline of this notable recent commentary by Rend Smith appearing in Washington's City Paper. Here are excerpts (with links from the original):

[D]ozens of marijuana activists converged on the National Mall
to celebrate 4/20 and push for the drug's legalization. If photos and
videos are any indication, most of the attendees were white. As a black
man, I find their efforts laudable and hearteningly altruistic. D.C.'s
campaign against marijuana is racist. If it wasn't, District marijuana
enforcement would look a lot less abominable.

In 2010, I wrote about how Jon Gettman,
a public policy professor at Shenandoah University, pored through the
city's 2007 marijuana arrest records to discover the District had
arrested more pot offenders per capita than any other jurisdiction in
the country. Gettman also found that the overwhelming majority of pot
miscreants the city went after that year — 91 percent — was black.

... In 2007, a black person was eight
times more likely to be arrested for a District marijuana offense than a
white person, even though researchers have exposed what any college pot
dealer can tell you from the comfort of his Barcalounger: Members of
both racial groups consume cannabis at nearly equal rates.

D.C.'s dope divide is just as striking when you zoom out. According
to arrest numbers obtained from the Metropolitan Police Department and
crunched by a statistician, between 2005 and 2011, D.C. cops filed
30,126 marijuana offense charges. A staggering number of those — 27,560,
or 91 percent — were filed against African-Americans. Only 2,097 were
filed against whites.

Blame-the-victim folklore contends that pot-arrest asymmetries, which
show up in various cities around the country, are about blacks smoking
outside and getting their pot on street corners. Recent studies contradict that. And if D.C.'s shameful pot disparity was about anything but racial bias, we'd see it narrowing.

Instead, though the number of black and white pot charges filed
fluctuated from year to year, reefer charges filed against blacks rose 6
percent and declined 10 percent for whites between 2005 and 2011.

Over the last decade, the federal
city's black population has wavered as its white population shot up. If
municipal pot arrests were impartial, that should have equaled more
white potheads learning what the inside of a squad car looked like as
arrests of black potheads became scarcer. Latinos, moving into the city
in steady if not overwhelming numbers, for instance, saw their pot
arrests rise 40 percent between 2005 and 2011, from 93 pot charges to
153.

Also, at a time when weed has become another chic amenity, there's a
good chance that the city's affluent whites have most of D.C.'s stash.
Last year, Washingtonian ran a gleeful article about
the massive amount of weed rambling through D.C.'s elite neighborhoods
courtesy of drug-dealing stroller moms and tony pot-delivery services....

The only politician explicitly working to address the dope divide is longshot at-large D.C. Council candidate Paul Zukerberg, who's made marijuana decriminalization part of his platform.
He attributes the disparity to cops using stop-and-frisk powers on
young black males. "In D.C., we’re giving young people twice as many
marijuana arrests as high school diplomas," he writes on his website.

Other D.C. politicians I contacted, like Mayor Vince Gray, wouldn't comment on the matter or didn't return messages. But when I mentioned the dope divide to Police Chief Cathy Lanier (who told the Washington Post she’d
tried weed as teen) during an email exchange last year, the top cop
seemed concerned. “Broad statement,” she wrote. “Mixed feelings on
enforcement here...” When I tried to get Lanier to say more, she referred me to her
spokesperson, who told me that MPD doesn't insert itself into politics.

As detailed in this local story, an award-winning, 31-year-old female teacher in New Jersey avoided any prison time at her sentencing yesterday following a plea to sex charges after an illegal relationship a 15-year-old student. Here are the basics:

Erica DePalo was in the prime of her teaching career.
Just 31-years-old, with nearly a decade of teaching behind her, letters show the Essex County Teacher of the Year was loved by students and respected by colleagues. But hidden behind her cheerful facade was a woman suffering from extreme depression and anxiety, DePalo’s lawyer told the court — leading to an illicit sexual relationship with a 15-year-old student....

The former West Orange high school teacher, who admitted to the relationship with her student, was sentenced in state Superior Court today to a three-year suspended sentence, which means she will not serve any prison time if she cooperates with the conditions of her parole. DePalo also must register as a sex offender under Megan’s Law and cannot seek public or government office nor have any contact with the victim.

The non-custodial plea was largely influenced by DePalo’s psychiatric condition at the time of the sexual relationship, attorneys said.
Months before DePalo began the relationship with the boy, she was diagnosed with bipolar disorder, [defense attorney Anthony] Alfano said. A doctor incorrectly prescribed anti-depressants which affected her sense of entitlement and judgment....

In court, DePalo took responsibility for the affair, apologizing to the victim in a quivering voice, tears running down her cheeks.
"I feel nothing but remorse for my actions and deep, deep sadness for all I’ve lost because of them," she said.

Police charged DePalo in August with first-degree aggravated sexual assault, second-degree sexual assault and endangering the welfare of a child. The first two charges were dropped as part of the plea deal.
If DePalo had gone to trial and been convicted, she could have faced up to ten years in prison.

The non-custodial sentence was previously criticized by West Orange superintendent James O’Neil as too lenient. Both Alfano and Assistant Prosecutor Tony Gutierrez said the victim’s family consented to the plea.
Gutierrez said the 15-year-old boy, who was a student in DePalo’s honor’s English class, was the only victim and that the relationship lasted a few weeks.

Alfano said gender was never brought up in plea negotiations, referencing a Star-Ledger analysis of 97 cases which revealed men serve about 40 percent longer jail terms and go to prison more often than women in these cases.

The referenced analysis on the study of NJ teacher-student sex cases appears in this companion article, which provides this accoutning:

Critics have called the punishment for the former Essex County teacher of the year too lenient and reflective of a double standard that disproportionately penalizes men for similar relationships with students.

A Star-Ledger analysis of 97 cases in New Jersey over the past decade reveals significant disparities: Men are on average sent to jail in more cases and receive longer sentences.
The data about 72 men and 25 women also shows:

• Male defendants went to prison in 54 percent of cases compared with 44 percent of cases for female defendants;

• Men averaged 2.4 years in prison compared with 1.6 years in prison for women, or 50 percent more time;

There are various reasons for the disparities in these cases, experts say, including the perception that girls and women need to be protected and are more vulnerable than their male counterparts, the availability of evidence, and the willingness of the student to participate in the prosecution.

"There’s a general societal disposition that does continue to treat women as the gentler sex, so typically the threshold for sending women to prison is higher," said Martin Horn, director of the New York State Sentencing Commission and a professor at the John Jay College of Criminal Justice.

All cases studied involve teachers, substitute teachers, coaches or school personnel who admitted to, or were convicted of, engaging in sexual relationships with students connected to their school.
"Juries and judges sort of make a consideration about how exploitative the crime is and how predatory the perpetrator is," Horn said. "The system is supposed to make discriminations or make distinctions between individuals based on their perceived levels of culpability."

Most of the 97 cases analyzed were described in reports as consensual in nature (though not in the eyes of the law). In New Jersey, the age of consent is 16, but a person in a supervisory role, such as a teacher, can be guilty of sexual offenses even if a student is 16 or 17.

Because New Jersey’s Administrative Office of the Courts does not keep separate records on sex crimes committed by educators, The Star-Ledger used reports filed by the state Board of Examiners detailing teacher license suspensions. The suspension reports that described inappropriate student relationships were cross-checked with court records to obtain necessary information. This is not inclusive of every teacher-student case in the past 10 years.

April 29, 2013

"Is 100 Years a Life Sentence? Opinions Are Divided"

The title of this post is the headline of this notable new Sidebar column in the New York Times by Adam Liptak. Hard-core sentencing fans should realize from the title that this is a story about one of the many doctrinal questions gurgling in lower courts three years after a landmark Eighth Amendment SCOTUS ruling. Here are excerpts from the column:

If people who are too young to vote commit crimes short of murder, the Supreme Court said in 2010, they should not be sentenced to die in prison. That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.

One is formal. The court may have meant only to bar sentences labeled “life without parole.” On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life....

The other way to understand the decision is practical. If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.

The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question. Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16. He was sentenced to 89 years. Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.... Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.

Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.” An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.

“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.

Mr. Henry is black and was born in 1989. The life expectancy of black males born that year was 64, according to the Centers for Disease Control and Prevention. Life expectancy in prison is shorter than it is outside. Wherever the line is, then, a 76-year sentence would seem to be past it. “Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.

That is a reasonable question. But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one. “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said. It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said....

The number of juvenile offenders serving de facto life terms because of very long sentences is probably in the hundreds. Some of the appeals court judges who have upheld such sentences did not sound enthusiastic about the task. “Without any tools to work with, however, we can only apply Graham as it is written,” Judge Griffin wrote. “If the Supreme Court has more in mind, it will have to say what that is.”

As reported in this new AP piece, "Judy Clarke is joining the team representing the suspect in the Boston Marathon bombings." Here is more of the basics of federal public defender Clarke's appointment:

The appointment of Clarke, based in San Diego, Calif., was approved Monday by U.S. Magistrate Judge Marianne Bowler. Bowler denied a request from Dzhokhar Tsarnaev’s public defender to appoint a second death penalty lawyer. Bowler says Tsarnaev’s lawyers could renew their motion to appoint another death penalty expert if Tsarnaev is indicted....

Clarke’s clients have included Unabomber Ted Kaczynski; Susan Smith, who drowned her two children; and most recently Tucson, Ariz., shooter Jared Loughner. All received life sentences instead of the death penalty.

Not quite coincidentally, this distinct AP piece from last week provided a little bit of a profile of Clarke and her work, and it highlighted her ability to working out plea deals with prosecutors that serve to spare her clients from facing the death penalty. Not listed in this latest AP article is Clarke's representation of Olympic Park bomber Eric Rudolf, whose crimes and motivation are arguably most comparable to what it seems we so far know about Dzhokhar Tsarnaev’s crimes and purported motives. As with the federal mass murderers Kaczynski and Loughner, Clarke helped secure an LWOP plea deal with Rudolf to save his life.

I mused in this post a couple of weeks ago when Tsarnaev was first captured that "as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea." The appointment of Clarke prompts me to now turn my musings into a prediction: I think the odds are now pretty good that, after a fair bit of (costly?) legal wranging over the next few months or years, Dzhokhar Tsarnaev will plead guilty and get sentenced to life without the possibility of parole.

UPDATE: Just moments after click "Publish" on this post, I saw this interesting new commentary by Mark Osler at MSNBC headlined "Sentence the Boston bomber to meaninglessness." The piece contends that LWOP may be the best "punishment" in this case in these interesting terms:

[W]hat someone like Tsarnaev probably fears most is meaninglessness. He is typical of terrorists, in that he is a young man of little accomplishment who chose to make his mark on the world through a terrible act. For someone like Tsarnaev, and many others like him, the real fear is a life of being unimportant. The evidence of that is already clear, given that he chose a path of carnage and destruction, with the high risk of death that comes with all that, rather than to continue life as a nondescript college student.

Fortunately, the alternative to execution in the federal system is precisely what Tsarnaev seems to fear: utter meaninglessness.

Technically, the sentence is called life without parole (there is no parole in the federal system for any sentence). However, more than anything, it is a sentence to an existence without notice or meaning, to live out one’s life without the deep interactions with the world that inspire people to great and terrible acts. It begins with being assigned a number which largely replaces one’s name, and it ends with an unnoticed death, rather than the burst of attention that accompanies an execution.

The Supreme Court has a significant non-decision this morning in Boyer v.
Louisiana. Here is the entire per curiam decision for the Court: "The writ of certiorari is dismissed as improvidently granted." But this mini-non-ruling also came with a concurring opinion authored by Justice Alito, joined by Justices Scalia and Thomas, and a a dissenting opinion authored by Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan. This surely suggests that the Chief Justice and/or Justice Kennedy wanted this case to go away rather than have to pick sides on the merits.

We granted certiorari in this case to decide “[w]hether a
state’s failure to fund counsel for an indigent defendant for
five years, particularly where failure was the direct result
of the prosecution’s choice to seek the death penalty,
should be weighed against the state for speedy trial purposes.” Pet. for Cert. i. The premise of that question is
that a breakdown in Louisiana’s system for paying the
attorneys representing petitioner, an indigent defendant
who was charged with a capital offense, caused most of
the lengthy delay between his arrest and trial. Because the
record shows otherwise, I agree that the writ of certiorari
was improvidently granted.

We granted certiorari to decide whether a delay caused
by a State’s failure to fund counsel for an indigent’s de fense should be weighed against the State in determining
whether there was a deprivation of a defendant’s Sixth
Amendment right to a speedy trial. 568 U.S. ___ (2012).
Rather than dismiss the writ as improvidently granted, I
would simply address this question. Our precedents provide a clear answer: Such a delay should weigh against the
State. It is important for States to understand that they
have an obligation to protect
a defendant’s constitutional
right to a speedy trial. I respectfully dissent.

SCOTUS grants cert on federal criminal law causation issues

The Supreme Court, despite having one of it members on the DL, gets a new week started with some notable criminal justice action. First and foremost, it has granted review, via this order list, in Burrage v. United States (12-7515). Here is how the SCOTUSblog folks describes the questions on which cert was granted in Burrage:

First, whether the crime of distributing drugs causing death is a strict liability crime without a cause requirement.

Second, whether a person can be convicted of that crime under jury instructions which allow a conviction when the heroin contributed to death but was not the sole cause of the death.

The way these issues matter in Burrage can be figured out from the Eighth Circuit decision from last year, which can be accessed at this link. And, thanks to the SCOTUSblog folks, now the cert petition can be accessed at this link.

April 28, 2013

Lawyers and prisoners using Yelp to review lock-ups

As reported in this new Washington Post piece, headlined "With few other outlets, inmates review prisons on Yelp," one can find more than restaurant reviews on-line these days. Here are excerpts from this article:

Lawyer Robert Miller has visited five prisons and 17 jails in his lifetime, but he has reviewed only three of them on Yelp. One he found “average,” with inexperienced and power-hungry officers. Another he faulted for its “kind of very firmly rude staff.” His most recent review, a January critique of Theo Lacy jail in Orange County, Calif., lauds the cleanliness, urban setting and “very nice” deputies.
Miller gave it five out of five stars.

“I started reviewing because I needed something to kill time while I waited to see clients,” said Miller, who has worked as a private defense lawyer in Southern California for 18 years. “But I think the reviews are actually helpful for bail bondsmen, attorneys, family members — a lot of people, actually.”...

Because Yelp does not break out statistics by business type, it’s difficult to tell how many jails and prisons have been reviewed in the 19 countries covered by the site. (Yelp declined to comment for this article, aside from noting that users may review any business with a physical address, as long as the review follows site guidelines.) In the Washington region, six incarceration facilities have earned reviews, including two in 2013....

Accuracy is, of course, a major concern with Yelp reviews of any type, and an especially big one when reviewers make serious complaints. In June 2012, a reviewer alleged that five guards at the Men’s Central Jail in Los Angeles beat him for no reason and laughed about it afterward. Other reviews of the jail mention rat infestations, violence and racial tensions.

“Every allegation we get, we investigate,” said Stephen Whitmore, spokesman for Los Angeles County Sheriff Lee Baca. He notes that the jail has also its share of four- and five-star reviews. “But this Yelp phenomenon I find curious,” Whitmore said. “Jail isn’t a restaurant. It isn’t seeing a movie. You’re doing time for committing a crime.”

Bad reviews aren’t unique to Los Angeles. In New York, one user wrote that officers pressure inmates going through drug withdrawal to lie about their symptoms, presumably so the jail doesn’t have to provide treatment....

Although some look upon the reviews as weird novelties — “like Lonely Planet for career criminals,” one Buzzfeed post put it — they could reflect serious flaws in the U.S. prison system. Because of a 1996 law called the Prison Litigation Reform Act, inmates cannot sue over prison conditions until they have “exhausted” administrative procedures, and they can ask for only limited changes to prison policy. Just a few states, such as Texas and New York, have outside inspectors who watch for abuse within the system....

David Fathi, director of the National Prison Project of the American Civil Liberties Union ... said his group receives 300 to 400 written complaints each month about prison conditions. That number does not include the phone calls and e-mails the project receives or the complaints addressed to the ACLU’s state branches. Almost none of those grievances make it to court. So Yelp reviews, Fathi said, could prove to be pretty powerful. “Prisons and jails are closed institutions, and the lack of outside scrutiny and oversight sometimes facilitates mistreatment and abuse,” Fathi said. “So anything that increases public awareness of prison conditions is a positive thing.”

Not all of those reviews are accurate, of course, and many may come from pranksters who don’t care about the travails of prison life. The reviews also won’t necessarily prompt systemic change — it’s not like a detention center relies on good Yelp reviews for business the way some restaurants and small businesses do.

But Miller, the California lawyer, said the reviews can help educate professionals who work with the prison system and inform the public about the conditions inmates face.
“It helps elevate consciousness of the problems and brings transparency and oversight to a system that isn’t used to being transparent,” Miller said. “That’s a very valuable tool.”

Potent preview of pot policy prospects, problems and possibilities

With apologies for the forced illeteration in the headline of this post, I was inspired by this effective new USA Today column by Beau Kilmer headlined "7 key questions on marijuana legalization: As more states consider the move, they will face some new and tricky issues." The start of the piece and the headings highlighted below perhaps provide an explanation:

Believe me, I've heard all the pot jokes, and some of them are true. Public support for legalizing marijuana use is at an all-time high. Some state-level marijuana laws are going up in smoke. And yes, Washington and Colorado are embarking on a historic joint venture.

Puns aside, discussions about marijuana legalization are getting serious. In November, voters in Colorado and Washington made the unprecedented decision to allow commercial production, distribution and possession of marijuana for nonmedical purposes. Not even the Netherlands goes that far.

Policymakers in both states are confronting some new and tricky issues that have never been addressed. For them, and for anyone else thinking about changing their pot laws, here are seven key decision areas that will shape the costs and benefits of marijuana legalization:

1. Production. Where will legal pot be grown -- outdoors on commercial farms, inside in confined growing spaces, or somewhere in between?...

2. Profit motive. If there is a commercial pot industry, businesses will have strong incentives to create and maintain the heavy users who use most of the pot...

3. Promotion. Will states try to limit or counter advertisements in the communities and stores that sell marijuana?...

4. Prevention. If pot is legal for adults, how will school and community prevention programs adapt their messages to prevent kids from using?...

5. Potency. Marijuana potency is usually measured by its tetrahydrocannabinol content, or THC -- the chemical compound largely responsible for creating the "high" from pot, as well as increasing the risk of panic attacks....

6. Price. With marijuana, like any other commodity, price will influence consumption and revenues....

7. Permanency. The first jurisdictions to legalize pot will probably suffer growing pains and want to make changes later on....